British Record Industry Loses Fight to Extend Copyright

Posted by David Holmes on

The British record industry has lost the fight to extend copyrights on sound recordings from 50 years to 95 years. Artists and record labels have been lobbying the government in an effort to bring copyright protection into line with United States copyright law.

In December 2005, the Chancellor of the Exchequer asked Andrew Gowers to lead an Independent Review to examine the UK’s intellectual property framework. Today, the Telegraph reports the Gowers Review has found little evidence to support record companies claims they will be deprived of profits that otherwise could be used to reinvest in new acts. The review will recommend against an extension of copyright terms but the final decision rests with the government. Music industry insiders are calling it a "blow" to the record industry that will detrimentally impact the income of artists in their old age. Recordings out of copyright will enter the public domain and be available for anyone to use or exploit for non-commercial and commercial purposes.

To clarify:

Copyright in Sound Recordings
Sound recordings have an individual copyright that is separate from the copyright of the composition. Even if the composition is in the public domain, a specific sound recording of it may not be.

Therefore, the two types of copyright that apply when talking about music copyright are:

1. The copyright that applies to the composition, musical score and lyrics of a musical work. This is signified by the traditional ‘C in a circle’ © symbol and remains in effect for 70 years after the death of the last remaining author.

2. The copyright that applies to the sound recording itself which is signified by the ‘P in a circle’ symbol and remains in effect for 50 years from the death of the last remaining author or from when the work was made available to the public, by authorized release, performance, broadcast, etc.

Excerpt: Release The Music: A guide to copyright in sound recordings.

See the British Music Rights FAQ for general information about copyright and the music industry.

Creative Commons

The issues surrounding copyright restrictions and music are complex, especially in the areas of sampling and file-sharing. Many independent artists see traditional copyright as overly restrictive and are now choosing to make works available under Creative Commons licenses. These type of copyleft licenses generally provide pre-cleared permission to copy, distribute, display, and perform the work under the terms of the license. This can apply to individual samples, complete songs and other materials.

The use of CC licenses has enabled podcasters to produce and distribute shows using a legal framework, without the complicated conditions associated with Webcasting licensed music from the major record labels. Copyleft licenses are now widely adopted by netlabels like Magnatune and dozens of other CC music distributors. A new music commons is being created and musicians can easily collaborate online using web-based tools like ccMixter, Jamglue and Splice. This open and flexible model is already commercially viable and it’s only a matter of time before CC licensed music becomes ubiquitous.

There is a shift across the board to allow people access to music in new ways that take advantage of digital technologies and the Internet. Creative Commons is a part of it, interactivity and connectivity are at the heart of it, remix culture is a name for it.

Real World

Other websites like Peter Gabriel’s Real World Remixed encourage "in-house" remixing of works licensed by Real World Records Ltd (under the EMI banner). Although user generated derivative works can only be made available via the website, the job of seeking copyright clearance is made easier with the online Licence Application form (both commercial and non-commercial). Sadly, Peter is pro copyright extension and I’m interested to hear his point of view on the matter. I imagine the decision is influenced by his strong position in the record industry and financial involvement with digital distribution technologies like The Filter. He believes artists should have more control over their careers and wants the record industry to become a service industry.

"It is here, it is now" 

YourSpins is another site that lets people remix tracks licensed from artists, producers and record labels. These type of commercial ventures use competitions and popularity charts to engage customers with music promotions and advertising. 

Champagne Socialism Holding Back the Years (a retrospective update)

Much of the muddled thinking on the copyright extension debate appears to be coming from within the record industry. Millionaire musicians campaigning for "copyright creep" include Sir Cliff Richard, Bono, and Mick Hucknall of Simply Red.

Cliff’s first hit recording "Move It!" is due to enter the public domain in 2008. Written by Ian Samwell, It was the first rock and roll hit to be created in Britain. Ian’s lifelong contribution to the record industry is highly significant and this recording will be an important addition to the public domain. This year Sir Cliff has recorded the song again.

Incidently, Cliff’s backing band were originally called The Drifters but changed the name to The Shadows due to legal complications with the American R&B group of the same name, formed earlier by Clyde McPhatter. 

"They say the lights are always bright on Broadway. They say there’s always magic in the air." On Broadway

There are many of these early recordings from 50 years ago that are currently not made available by the record companies that own them. The era of rock ‘n’ roll has hit the public domain and specialist music dealers are able to make recordings more widely available. Rock ‘n’ Roll songs entering the PD in 2007 include : 

  • Elvis — Heartbreak Hotel, Blue Suede Shoes, Love Me Tender
  • Little Richard — Tutti Frutti
  • Chuck Berry — Roll Over Beethoven
  • James Brown — Please, Please, Please
  • Carl Perkins — Blue Suede Shoes
  • Johnny Cash — I Walk The Line
  • Lonnie Donegan — Rock Island Line

This potentially provides income for the original songwriters who receive publishing royalties on the sale of materials, radio plays, etc. As the law stands, the coming years will see popular titles by The Beatles and The Rolling Stones enter the public domain. With the permission of the publisher these works can then be distributed and remixed freely.

How much of the current CE lobbying is due to artists jumping on the bandwagon to promote themselves rather than awareness of the real issues is a matter of opinion. Their anti-public ownership challenge can be confusing to the public who’s side of the deal they aim to break by changing the law retrospectively.

Mick’s Mini Manifesto

An example of this confusing woolly clothing is a recent piece by Mick Hucknall for The Guardian:

Fundamental Socialism – Copyright does not restrict the flow of ideas; it promotes it, and boosts the knowledge economy.

Mick is a close friend of Tony Blair and a staunch supporter of the UK Labour party, hence the socialist stance. His handsome donations, have helped the Labour party in the past when they most needed it (Leak ). However, donations to Labour have virtually dried up since the investigation into the cash for honors scandal and the party is now £23.4m in debt. See Red Star Research for information on friends of the New Labour Project and the Electoral Commission : Loans to political parties.

"Any rock can be made to roll if you’ve enough of it to pay the toll".

In the Guardian article Mick says:

"Copyright promotes artistic creativity and the free circulation of ideas. More than 20 years ago, musicians seized the opportunity for collaboration offered by new technology in the form of digital samples. Far from obstructing this exchange of inspiration, copyright facilitates sampling, and translates the creative debt into income for the creator of the borrowed work. Musical sampling is the perfect example of copyright’s flexibility in fusing the ever-changing worlds of art, commerce and technology."

Free circulation of ideas? This contrasts sharply with his attack on the music industry in 2003.

He told the Financial Times:

"The contract was basically immoral.

"Like many artists, my deal meant I paid for the cost of recording the music. I paid for the marketing. And I didn’t get any royalties until those costs had been incurred.

"But despite this the contract stated that the master recordings still belonged to the record company."

"I don’t know any other business where you pay for something and then someone else owns it."

If not the tune at least the words appear to have changed somewhat. I guess at the time Mick just wanted to get control over his own copyrights having signed up for a deal that made him £20m and the label £192m profit. Apparently Mick thought this was unfair (exploited?) and belatedly realized owning all your own copyrights is a better place to be. He’s now worth more than £40m and apparently enjoys the benefits of copyright control so much that he would like to extend it retrospectively. Does this make him a kind of public domain pirate?

Sound Sampling Socialism

As far as digital sampling and socialism are concerned, he seems to have missed the fact that digital drum machines and samplers were used both live and in the studio to replace drummers, bass players, horn and string sections, etc. Thereby eliminating the expense of paying musicians and arrangers in accordance with the rules of the Musicians’ Union and forcing many musicians into unemployment. The realistic reproduction of various musical sounds was revolutionary and instruments like Ken Freeman’s string synthesizer were analog precursors of things to come such as Roger Linn’s drum machine, a digital rhythm sequencer which became widely used in music productions. This situation provided little incentive for traditional musicians to pursue professional careers in the record industry.

Fueled by new technologies and a deficit of real musicians, small groups of creative people began "sampling" the remnants of live playing that could still be found on old vinyl recordings. But mostly it was the sound of the recordings that creators were interested in, the unique feel created by the recording process at the time. Ironically the recording engineers that often spent lifetimes conjuring these sounds into existence were rarely if ever paid a royalty for their work. Even a credit on the sleeve notes was considered privileged at the time. Perhaps retrospectively we should track down all the engineers that have contributed to these recordings and give them pensions!

The process of selecting these disparate chunks of sound and recombining them into structured compositions became a highly skilled and resourceful art form. From the plundering of rare and obscure sound sources to the editing and final musical composition itself, the art of noise had unlimited potential.

Mick’s correct that musicians did try to seize the opportunity for collaboration using digital samples. However, due to copyright restrictions this was considered stealing, an infringement of both the sound recording copyright and the original composition copyright. And so just when it mattered most, costly and complicated procedures were introduced designed to secure copyright clearance and deter unauthorized use of musical works. To summarize, copyright prohibits use and deters creativity; infringement of the law is usually pursued in conjunction with the motivational word money – ‘Where there’s a hit, there’s a writ!’.

Still, by the time record company executives, publishers and composers realized how to make money from (wr)it, brilliant new derivative works had emerged and the genie had escaped the bottle.

For the first time it was possible to experiment musically by isolating and combining the greatest musical performances, compositions, lyrics, and sounds of history. Having stood on the shoulders of giants and been inspired by the vision before them, the creators of music embarked on a great journey to explore the wealth of world culture. They quickly rediscovered the forgotten treasures of the esoteric arts, counterculture, tribal traditions and the hidden meanings locked within previous struggles. The artistic creators, scattered into diverse communities, started to manufacture hybrid forms of music from their eclectic plundering.

These hybrid musical forms inevitably lead to social commentary and a reappraisal of the human condition. Each community finding its own voice and identity. Had the public domain vaults contained more recent sound recordings even more creativity would have been unleashed. None of this was dependant on obeying the laws of copyright and much was achieved through the process of dissent coupled with a healthy dose of entrepreneurism. Is Mick suggesting that the inventors of Hip Hop music are irrelevant because they infringed copyright?  Art is at the heart of culture, it’s shameful to deny it and painful to the artists that are persecuted for making it.

True Colours – Paint It Black – Fade to Grey

Mick says:

"Allowing valuable sound recordings to pass into the public domain does not create a public asset: it represents a massive destruction of UK wealth, and a significant loss to the UK taxpayer as exploitation moves offshore or into the grey market."

So he’s against replenishing the public domain on the grounds that it destroys UK wealth. Would that be your wealth or his?

Grey market? I assume he’s talking about Danger Mouse’s Grey Album, a remix of music from The Beatles’ White Album and rapper Jay-Z’s Black Album. The production used unauthorized samples of The Beatles recordings. EMI the copyright holder ordered Danger Mouse and associated retail outlets to cease distribution. In response, Downhill Battle, activists for music industry reform, organized a protest. Grey Tuesday was a day of coordinated electronic civil disobedience on February 24, 2004. For 24 hours, participating websites adopted grey tones and posted copies of The Grey Album for free download on their sites. And when the fat doggy shakes its tail:

"OVER 1 MILLION SONGS IN A DAY After a survey of the sites that hosted files during Grey Tuesday, and an analysis of filesharing activity on that day, we can confidently report that the Grey Album was the number one album in the US on February 24 by a large margin. Danger Mouse moved more "units" than Norah Jones and Kanye West, with well over 100,000 copies downloaded. That’s more than 1 million digital tracks."

Doubtless, the huge public interest must be doing nothing to stimulate interest in The Beatles’ music and is obviously damaging the UK economy (minus the bandwidth providers). That is why this illegal art must be crushed for the benefit of the public. History has shown EMI’s attempts to silence the protest and curtail downloading of the Grey Album are futile.

In the past, revolutionary digital developers and pioneering producers invented new tools and broke many rules in the pursuit of their grey arts. As these pioneers pushed the frontiers of possibility forward, a vacuum was created behind them to be filled by the artists of following generations. The same fundamental social traits are being played out today on a much grander scale. The meaning and influence of musical sampling is best told by the samplists themselves and the copyright criminals documentary This is a Sampling Sport is well worth watching if you’re interested. 

Fundamentally Flawed – Let It Bleed

The Guardian article is fundamentally flawed and Mick’s partisan posture on copyright extension reads more like an ill-advised, self-serving, charm offensive. Testimony to the public’s distaste for his ideas are the number of weighty comments posted in opposition to his discourse. The rush of hot air has rapidly spread flaming dissent like wildfire from column to post.

Granted, some of these comments are possibly due to Mick’s poor public perception; he ranked 43 in a Channel 4 poll to discover the 100 Worst Britons We Love to Hate. Cliff charted at number 29 and Tony shimmied straight to the top on his ascent up the greasy pole of pub-politics. Politicians are not held in high esteem by the British public (There’s an ongoing police investigation into Labour funding and MPs are currently asking for a 66% wage increase).  

Rebuttal

In relation to Mick’s piece the Guardian’s online editor Vic Keegan was quick to publish a rebuttal.

Excerpt: 

"Talent is now starting to come spontaneously from below and being judged by its peers around the world rather than having to go through the rusting filtration plant of the quasi-monopolistic moguls of the music or publishing industries.

The new digital giants, Google, YouTube, MySpace, Bebo, Flickr and the rest, are operating in a different space and we will have to adjust. It goes without saying that artists should be properly rewarded, but surely 30 or, at most, 40 years is enough to milk what is there before letting the rest of the world have a go at remixing or improving on the old songs (which British artists would be good at)."

Grassroots – Let It Be

I’m inclined to agree with his point of view, grassroots production flourishes in an "open" space, Creative Commons is a useful copyright tool and the public domain is a valuable source of material. British artists are indeed very good at remixing and improving songs. Building on the past adds cultural value.   

Mick mentions this here:

"Copyright extension is partly about equality for performers, with other creators and with those in the US and elsewhere. It is also about maintaining the cultural value of works by controlling their exploitation. But, most of all, it is about nurturing the development of a truly revolutionary explosion in small-scale grassroots creative businesses."

So the UK should unilaterally extend copyright in line with the US and give it’s citizens the equal benefit of losing access to hundreds of classical works made available at resources like the European Archives? No thanks Mick. 

Now, in relation to record companies, copyright and ownership, I’ve highlighted two words in the excerpt above that seem to make more sense once exchanged. Advocates of copyright extension claim the relatively small amount of money involved, £143m over 10 years according to a recent IPPR estimate, would be vital for investing in new acts. Consider:

"Extending the copyright period would mean that record companies have no incentive to discover new talent. When Cliff Richard signed to EMI in 1958, the company wasn’t relying on the smash hits of 1908 to fund the deal." Private Eye issue 1157.

A recorded work paid for by a record company is owned by the company (copyright) and is a company asset. Most commercial record companies invest in sound recordings for the purpose of developing (nurturing) a return on that investment. This can mean exploiting the product to it’s maximum potential. A record company’s most valuable assets are the acts that sell the most. In a large corporation the most popular acts form a minority.

It’s no coincidence this call for copyright extension comes at a time when the biggest acts are falling out of copyright: Elvis, The Beatles, The Rolling Stones, Bob Dylan etc. Without this safe income the record companies will be forced to invest in new acts to remain competitive. It’s easier for them to keep singing the chorus line to Elvis’s "Got My Mojo Working, Keep Your Hands Off of It"

P2P Distribution

Research shows that unknown artists, the ones selling the least albums at the grassroots level, benefit from P2P file-sharing. Conversely, popular artists with higher sales are damaged by file sharing. So although P2P file sharing depresses music sales overall, the effect is not even. To protect their most valuable assets it’s in the interests of the record companies to reduce (control) the amount of file-sharing.

"File sharing is reducing the probability that any act is able to sell millions of records, and if the success of the mega-star artists is what drives the investment in new acts, it might reduce the incentive to invest in new talent." – For an explanation see The effect of P2P file-sharing depends on popularity.

Either way the case for investment in new talent by major record labels looks tenuous. At the other end of the tail,  unsigned bands are very happy to be able to share their music online. Many new artists actively distribute media files under Creative Commons licenses across P2P networks. What about their copyrights? Hundreds of these acts are now carving out their own niche in the wider music business outside of the record industry.

"In a traditional market, hit products often get 80% of the revenue. In a long tail market, hit products get 50% of the revenue while the other 50% is shared by a plethora of niche producers." (definition from Global Guerrillas weblog) – See P2P Foundation Long Tail

Closing down file-sharing networks affects these niche producers by inhibiting low cost distribution. Protecting the interests of the minority popular artists, that only benefit the coffers of large private corporations, sounds more like reinforcing capitalism than socialism, although I’m aware definitions of the two are constantly evolving. Interestingly, file sharers get different treatment in Europe’s courts. 

The Internet and mobile devices provide new opportunities for the distribution of media and there’s gold in The Long Tail. However, if record companies depend on their most popular acts for profits it’s probable that many older and important works will remain unheard, locked in record company archives.

Copyright and the record industry is less about equality and more about rarity, as in restricted, infrequent, unavailable, scarce. There are many examples of how copyright has been used to suppress creativity and freedom of speech. Recently we saw claims of corporate copyright infringement over the stolen Open Source code used in the Sony Rootkit spyware scandal. And what’s this I hear? Is EMI profiting from Beatles digital piracy? – Artist exploitation? Never!

Rather than say any more on Mick’s piece here I’ll simply point you to Simon’s amusing and witty decoding of it in We’ll keep the red-head flag flying here. For more about flaws in reasoning and argument see: Thirty-eight dishonest tricks which are commonly used in argument, with the methods of overcoming them taken from "Straight and crooked thinking" by Robert H. Thouless. 

Buffalo Bill’s Wild West – Presents – The Silence of the Lambs

In response to the leaked findings of the Gowers Review, the chairman of the British Phonographic Industry, Peter Jameison claims:

"There can be no rationale for discriminating against performing artists…"

On that note and keeping with the theme of whistle blowers, perhaps signed artists should investigate Some intimate details on the Google YouTube deal. It would appear the big media companies have done a deal that avoids musicians and actors getting a cut of the millions exchanging hands in the settlement payouts. I have no idea as to the validity of the claims but a couple of the paragraphs contain information sure to wet the whistle of many a musician. Thanks Victor.

If any of it is true the lawyers will already have their sharpened claws thrust firmly into the tender meat and the hungry wolves will be licking their lips at the thought of lengthy litigation. When it comes to copyright and big business, what goes on behind closed doors, in the darkened smoke-filled rooms of private corporations, God only knows.  

Is it any wonder we find it difficult to trust wealthy business men and politicians that consort secretly? When a Christian musician more popular than the pope, and lobbying for copyright reform, provides the Blairs shelter for their summer holidays as a gesture of kindness, people are bound to ask questions. On that cliff hanger, a few final thoughts.

It makes me wonder if the 8000 about to be slaughtered are just sacrificial lambs… a forlorn hope… redshirt characters dreaming of red wine… Yea, though I walk through the valley of the shadow of death, I will fear no evil… for I am blissfully ignorant…baa.

Cartoon courtesy of gapingvoid – blog homepage

"All this takes place without a single sunset, without a single bell ringing and without a single blossom falling from the sky. Yet it fills everything with its mysterious intoxicating presence. It’s over to you." This and various other quotes – Peter Gabriel, The Lamb Lies Down on Broadway – see annotated interpretation.

The Writing’s on The Wall

This video has been removed at the request of copyright owner Warner Music Group
because its content was used without permission

"It’s only knock and know-all, but I like it"

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